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A FAIR ANSWER TO THE 

CONFEDERATE APPEAL 

AT RICHMOND 

BY 

MOSES MOORHEAD GRANGER 

Formerly Captain 18th U. S. Infantry; Lieutenant-Colonel t22d Ohio 

Volunteer Infantry; Brevet-Colonel U. S. Volunteers ; Chief 

Judge of the Supreme Court Commission of Ohio ; 

Author of "The Battle of Cedar Creek;" 

"Washington vs. Jefferson; the Case 

Tried by Battle in 1861-66 " 






,c'^ 



f^mftAflY of congress] 
^ iWu Copies Received ; 

j OCT 6. mf 

I Capyrteht Entry __ 
CLASii/4 XXc, No. 
COPY ti/ 



COPYRIGHT 1907 BY MOSES M, GRANGER 



A FAIR ANSWER 

TO THE CONFEDERATE APPEAL 

AT RICHMOND 

On Monday, June 3, 1907, a great memorial column, 
arch, and statue was unveiled at Richmond, Virginia, 
in honor of Jefferson Davis, the only president of the 
states that from February, 1861, to May, 1865, acted 
as '*The Confederate States of America." The inscrip- 
tion upon this monument, and the speeches made, claim 
that God will vindicate the action of those states, and of 
President Davis, and express what is firmly believed by 
the great majority of the white inhabitants of those states. 

The majority of the people of the present United 
States of America as firmly believe that, as God can- 
not give a wrong judgment, the facts that I will now 
briefly state will forever prevent by Him the vindica- 
tion claimed by this memorial monument. 

The states that seceded in 1860 and 1861 claimed as 
their justification : — 

1. That the South had been wronged by the legis- 
lation as to the territory of the United States. 

2. That it had been wronged by the failure to comply 
with and enforce the provision in the Constitution of 
the United States for the recovery of fugitive slaves. 

3. That the existence of slavery, in the then slave 
states, was in imminent peril, because of the prevalence 
of anti -slavery opinions in the then free states. 

4. That the Congress of the United States had failed 
to pass any laws regulating and protecting slavery in the 
territories. 



[2] 

5. That each state was sovereign, and had full right 
to secede at pleasure, and without cause. 

6. That the people in the Free States were very 
strongly anti-slavery in opinion, and hostile to the South. 

What were the actual facts as to each of said claims, 
up to and in 1860-1861 ? 

The Facts as to Claim One 

Every act of Congress as to any territory of the United 
States passed between March 4, 1789, and March 4, 
1861, except that of 1798, organizing Mississippi as a 
territory, was approved by a president of the United 
States who was born in a slave state, was himself a 
slaveholder, and was popular in and approved by the 
South, except Presidents Van Buren, Fillmore, Pierce, 
and Buchanan. The acts passed during the adminis- 
trations of said four Northern born presidents were ap- 
proved by the South; Van Buren, Pierce, and Buchanan 
each received a large majority of the electoral votes 
of the South. The legislation in President Fillmore's 
time — the Compromise of 1850 — was approved by 
the great majority of the representatives of the slave 
states in the Democratic and Whig national conven- 
tions of the year 1852. 

From September 9, 1850, until after July 4, 1861, 
any slaveholder who wished to do so, could take and 
hold his slaves in any part of the territory organized 
in 1850 as Utah and New Mexico. This embraced all 
of what is now Nevada, Utah, Arizona, and New Mexico, 
also the western half of what is now Colorado, and the 
southwestern part of what is now Wyoming. 

According to the census taken in June, 1860, there 
were then no slaves in New Mexico, and only 29 in Utah. 



[3] 

TMs indicated that the South did not intend or ex- 
pect the estabHshment of any slave states in either. 

From May 31, 1854, until 1861, any slaveholder could 
lawfully take and hold his slaves in any territory in 
the land ceded by France to the United States, east of 
the Rocky Mountains, except so much of what is now 
North and South Dakota as lies east of the Missouri 
River. The census taken in June, 1860, showed that 
within said territory, between the Rocky Mountains 
and the Missouri River, there were then only 17 slaves, 
15 of whom were in Nebraska, and the other 2 in 
Kansas. 

This indicated that the South did not, in 1860, in- 
tend or expect the establishment of any slave states in 
that territory. The legislation that, during those years, 
made slavery illegal in so much of the Dakotas as lies 
east of the Missouri River, and in what is now Idaho 
and Washington, and so much of Montana as lies 
west of the Rocky Mountains, was enacted during the 
administration of President Polk, of Tennessee, and 
approved by him; to wit, the acts organizing Oregon 
and Minnesota. Those territories lay so far north and 
were so distant from the nearest slave state that the 
South never intended or expected the creation of any 
slave state therein. 

Every act of Congress admitting any state, between 
March 4, 1789, and July 4, 1861, was approved by a 
president, born, reared, and resident in a slave state, 
and himself a slaveholder, or by one of the four North- 
ern born presidents hereinbefore named, who — as I 
have stated — were elected, or their action on such 
legislation approved, by the South. Under these facts, 
claim One is without merit. 



[4] 

The Facts as to Claim Two 

The third clause of section two of article four of 
the Constitution of the United States reads thus : — 

" No person held to service or labour in one state under 
the laws thereof, escaping into another, shall, in conse- 
quence of any law or regulation therein, be discharged 
from such service or labour, but shall be delivered up 
on claim of the party to whom such service or labour 
may be due." 

In 1842, in the case of Prigg vs. Pennsylvania, 16 
Howard's Reports, pages 540 and following, the Su- 
preme Court of the United States decided unanimously 
that this clause gave to Congress the power, and made 
it its duty, to enforce such delivery of a fugitive slave 
by appropriate legislation and by national officers. A 
minority of the court held that any state legislature 
also had power to aid in enforcing delivery. 

Congress in 1793 passed an act under this power 
and duty. Before 1850 this act was found defective, 
and one prepared by Senator James M. Mason, of 
Virginia, was passed by both houses and approved by 
President Fillmore. It was claimed, in a number of 
the free states, that some of the provisions of this act 
of 1850 were unconstitutional and wrongfully imposed 
illegal duties and penalties upon citizens and residents 
of said states. A number of free state legislatures 
passed state statutes, commonly known as "personal 
liberty bills," purporting to protect residents of said 
states from said duties and penalties, and to punish 
any illegal acts done under said fugitive slave law. 
Cases arising under said state legislation were duly 
carried to the Supreme Court of the United States, 



[5] 

which held that the " personal liberty bills " in a num- 
ber of said states — four — were unconstitutional and 
invalid. The last decision to that effect was made at 
December term, 1858, in the case of Ableman vs. Booth, 
21 Howard's Reports, pages 506 and following. The 
Supreme Court of the United States unanimously held 
that the entire fugitive slave law of 1850 was constitu- 
tional, that the personal liberty bill of Wisconsin was 
unconstitutional; and the judgment of the Wisconsin 
court in favor of Booth was reversed. Booth was there- 
after convicted, sentenced, and punished for a violation 
of the fugitive slave law of 1850. In May, 1859, the 
Supreme Court of Ohio, composed of Republican judges, 
followed this precedent; and some residents of Lorain 
County, Ohio, were punished, under a judgment ren- 
dered by the United States Court at Cleveland, for acts 
done in violation of said fugitive slave law. From the 
time of the passage of said law, in 1850, until after seces- 
sion, each president of the United States, and his subor- 
dinates charged with the enforcement of the laws, 
were active, diligent, and persistent in enforcing said 
fugitive slave law; and the United States Courts every- 
where did their duty in all cases brought before them, 
so faithfully that no complaint was made against any 
president, judge, or any legal or other United States 
official by the South. The census taken in June, 1860, 
showed that the number of slaves then within the 
United States, exceeded the number reported by the 
census of 1850, by about 500,000. Yet the number of 
escaped fugitive slaves in 1860 was 110 less than the 
number of escaped slaves in 1850. 

After the Supreme Court of the United States, at De- 
cember term, 1858, had unanimously decided that the 
entire law of 1850 was constitutional, no state court 



[6] 

upheld any of the personal liberty bills that the Supreme 
Court's decision had shown to be unconstitutional. 

The United States Congress, the president, the execu- 
tive departments, and the judiciary had actively, fear- 
lessly, and efficiently discharged the duty, and used the 
power, imposed and given by the Constitution, under 
what is known as "the fugitive slave clause." 

In the discussions in Congress in December, Janu- 
ary, and February, 1860-61, and in the conference 
of delegates from states convened at Washington City 
in February, 1861, on the invitation of Virginia, the 
foregoing facts were retold in speeches by free state 
men, and they urged that Congress might, and would, 
if secession did not continue, provide by suitable legis- 
lation that escaped slaves, who could not be arrested 
and delivered up, might be paid for by the United States 
Government. Southern representatives gave no indi- 
cation that such legislation would affect their claim 
under what I have called " Number Two." 

In his speech at Jonesboro, Illinois, on September 
15, 1858, Mr. Lincoln (there debating with Senator 
Douglas) said, "Now on what ground would a member 
of Congress, who is opposed to slavery in the abstract, 
vote for a fugitive slave law, as I would deem it my 
duty to do? Because there is a constitutional right 
which needs legislation to enforce it, and, although it 
is distasteful to me, I have sworn to support the Con- 
stitution, and having so sworn, I cannot conceive that 
I do support it if I withhold from that right any neces- 
sary legislation to make it practical." See the volume 
of the Lincoln-Douglas Debates, in 1858, page 155. 
This speech was published and read everj^vhere at 
the North for two years. By their nomination and 
election of Mr. Lincoln in 1860, the Republican party 



[7] 

endorsed his opinion* This speech was known to and 
quoted in the Senate by Senator Benjamin, of Louisi- 
ana. It was also known to other Southern congressmen. 
They knew, in 1860-61, that the newly elected presi- 
dent was thus publicly pledged to enforce effectively the 
fugitive slave law. 

Under these facts, the Southern claim Two was and 
is without merit or value. 



The Facts as to Claim Three 

Between 1830 and 1842, abolition societies were 
formed in many of the free states, abolition newspapers, 
pamphlets, tracts, addresses, and sermons were widely 
published and circulated, and abolition petitions were 
sent to both houses of Congress at each session. In 1840, 
members of said societies nominated James G. Birney 
for president of the United States, and voted for him 
in November of that year. They did the like in 1844. 
He received 7059 votes in 1840; the total vote that 
year was 2,410,778. He received 62,300 votes in 1844; 
the total vote that year was 2,698,611. Salmon P. 
Chase and others, who were opposed to the extension 
of slavery into free territory, but held that the United 
States had no constitutional power to abolish slavery 
in a state, induced those anti-slavery men, who would 
no longer act with either the Whig or the Democratic 
Party, to organize in 1848 as the " Free-Soil Party." 
The friends of Martin Van Buren, in order to punish 
Cass, joined the new party at Buffalo, and in Novem- 
ber, 1848, it cast 291,263 votes for Van Buren. In 
1852, the same party cast for John P. Hale 156,149 votes; 
the total vote that year was 3,139,869. In that year 
both the Democratic and Whig national conventions 



[8] 

resolved to approve and maintain "the compromise 
measures of 1850" and to resist any attempt *'to reopen 
the slavery question, come from what quarter it may." 
Franklin Pierce, born in New Hampshire, nominated 
through and by special efforts of Southern politicians, 
and holding the political opinions of John C. Calhoun, 
received all electoral votes except the 42 given by 
Massachusetts, Vermont, Kentucky, and Tennessee to 
General Winfield Scott, of Virginia. Thus the efforts 
of abolition societies, which had kept the South excited 
for twenty-two years, resulted in a vote of only 156,149 
men, not for abolition, but against the extension of 
slavery into free territory; and 2,983,720 votes to 
maintain the '* Compromise of 1850" and against any 
reopening of the slavery question. This seems to prove 
that the vast majority of the people of the North did not, 
in 1852, hate the South. They placed in the presidential 
chair a man holding strongly Southern opinions, and 
gave him a Congress ready to support him by a very 
large majority in each house. 

While only 156,149 men in 1852 voted, in a separate 
party, against the extension of slavery into free terri- 
tory, the vast majority of the people of the free states 
believed, as did George Mason, who was one of Vir- 
ginia's delegates to the Constitutional Convention of 
1787, — "George Mason of Gunston Hall." 

In Volume II of Bancroft's History of the Constitu- 
tion, on pages 153 and 154, I find that said Mason of 
Gunston Hall, in a speech made in said constitutional 
convention, said, — 

"Slavery discourages art and manufactures. The 
poor despise labor when performed by slaves. They pre- 
vent the emigration of whites, who really enrich and 
strengthen a country. They produce the most pernicious 



[9] 

effect upon manners, ^very master of slaves is born a 
petty tyrant. They bring the judgment of Heaven on 
a country. As nations cannot be rewarded or punished 
in the next world, they must be in this. By an inevi- 
table chain of causes and effects, Providence punishes 
national sins by national calamities. / hold it essential 
in every point of view that the general government should 
have the power to prevent the increase of slavery." 

The second paragraph of section three, article four, 
of the Constitution of the United States contains this 
provision: '*The Congress shall have power to dispose 
of and make all needful rules and regulations respecting 
the territory or other property belonging to the United 
States:' 

On March 6, 1820, Congress passed the act well known 
as the "Compromise of 1820." It prohibited slavery in 
all the territory ceded by France that lay north of 
north latitude 36° 30', except in the state of Missouri. 
This act was at once submitted to President James 
Monroe, of Virginia. He called his cabinet together 
and submitted to them this question: '*Is the section 
prohibiting slavery in said portion of said ceded terri- 
tory constitutional .P " His cabinet consisted of John 
Quincy Adams, of Massachusetts, Secretary of State, 
William H. Crawford, of Georgia, Secretary of the 
Treasury, John C. Calhoun, of South Carolina, Secre- 
tary of War, and William Wirt, of Virginia, Attorney- 
General. They unanimously advised the president 
that in their opinion the prohibition was constitutional 
and valid, so long as tlie land continued to be '* terri- 
tory;" but Crawford, Calhoun, and Wirt held that 
when admitted as a state, the state might, if it so pleased, 
legalize slavery in the state; so Mr. Monroe signed the 
bill and it became a law. 



[10] 

In 1850, this law had been in force for thirty years, 
and was well known and valued by the North as almost 
a part of the Constitution. Notwithstanding the long 
and excited contest in Congress, during that year, no 
attempt was made to alter, amend, or repeal it. None 
of the acts of Congress that became known as the 
"Compromise of 1850" contained one word relating to, 
or affecting, any part of the territory ceded by France 
and controlled by the "Compromise of 1820." 

The North, in both the Democratic and Whig na- 
tional conventions of 1852, understanding and believ- 
ing that the act of 1820 made secure for freedom all 
of the French cession north of 36° 30', joined heartily 
in the pledges "to maintain the Compromise of 1850" 
(the only one that was then opposed by extremists in 
both North and South) and *'to resist the reopening of 
the slavery question, come from what quarter it may." 

Senator Douglas reopened the slavery question in 
January, 1854, by first attempting to make "null," 
and later to repeal, the Compromise of 1820. In this 
he was supported by the South, and by President Pierce ; 
and the repeal took effect on May 31, 1854. This sur- 
prised and shocked vast numbers of anti-slavery men, 
who thought like George Mason, but had hitherto 
voted as regular members of either the Whig or Demo- 
cratic Party, and they resolved to so vote in the future 
as to prevent the extension of slavery into free terri- 
tory. In 1856, John C. Fremont was nominated for 
president on that platform, and he received a popular 
vote of 1,341,264, almost all cast in the 16 free states, 
a small number, aggregating less than 10,000, in 
some border slave states. This was only 49,312 less 
than General Scott had received in 1852, in the 31 
states. This was no "growth of an abolition party." 



[11] 

It was the same "Mason of Gunston Hall" anti- 
slavery opinion that, in 1820, had dedicated to freedom 
all of the French cession north of 36° 30'. It was not 
"hate of the South;" it was the same resolve to pre- 
vent "the extension of slavery" that George Mason 
was governed by. 

In 1860, in April at Charleston and later in Congress, 
the South insisted that Congress must pass national 
laws protecting slavery in the territories of the United 
States. Seventy-one years, for forty-one of which slave- 
holding presidents were in the executive chair, had 
passed, during which no such claim had been made. 
Because of this claim, voters in New Jersey, Pennsyl- 
vania, Indiana, and Illinois, who, by remaining in 
the Democratic Party had given to Mr. Buchanan 
the electoral votes of those states and made him presi- 
dent, in 1860 voted for Mr. Lincoln and made his 
total popular vote 1,866,352. This exceeded the vote of 
1856 for Mr. Buchanan by 28,183, although no votes 
were cast for Mr. Lincoln in ten of the slave states, 
all of which were carried in 1856 by Mr. Buchanan. 

The platform upon which Mr. Lincoln was nomi- 
nated and elected, limited the party's proposed action 
against slavery to the prevention of its extension into 
any free territory. 

Before Congress adjourned on March 4, 1861, by a 
vote of two thirds of each house it passed a joint reso- 
lution proposing to the states an amendment to the 
Constitution of the United States to read thus : — 

"Article XIII. No amendment shall be made to the 
Constitution which will authorize or give Congress the 
power to abolish or interfere, within any state, with 
the domestic institutions thereof, including that of per- 
sons held to labor or service by the laws of said state." 



[ 12] 

On May 13, 1861, the legislature of Ohio, largely 
Republican in both houses, duly ratified said amend- 
ment. 

The same legislature, in April, 1861, had authorized 
the organization of twenty-two regiments of infantry 
and also some cavalry and artillery, under President 
Lincoln's proclamation of April 15, for the purpose of 
aiding the president in executing the laws of the United 
States. If the Southern states, as they had ample time, 
had ratified said amendment in April or May, 1861, the 
existence of slavery in the then slave states would have 
been made secure beyond perad venture. The secession 
conventions of the Gulf States and South Carolina 
could have repealed their ordinances before Beaure- 
gard fired on Sumter, and the said thirteenth amend- 
ment could have been ratified, so that the members of 
Senate and House, to which they were entitled, might 
take their seats in Congress. Each house would then 
have contained a majority opposed to the Republican 
Party, and there would have been no war. 

President Lincoln was inaugurated on March 4, 
1861. In his inaugural address on that day, he said, 
"I have no purpose, directly or indirectly, to interfere 
with the institution of slavery in the states where it 
exists. I believe I have no lawful right to do so, and 
I have no inclination to do so. Those who nominated 
and elected me did so with full knowledge that I made 
this and many similar declarations and had never re- 
canted them; and more than this, they placed in the 
platform for my acceptance, and as a law to them- 
selves and to me, the clear and emphatic resolution 
which I now read : — 

"Resolved, That the maintenance inviolate of the 
rights of the states, and especially the rights of each 



[ 13 ] 

state to order and control its own domestic institutions 
according to its own judgment exclusively, is essential 
to that balance of power on which the perfection and 
endurance of our political fabric depend." 

The president repeated his opinion and statement 
as to his duty under the fugitive slave law, and plainly 
made known his intent to maintain the Constitution 
and laws of the United States in full force throughout 
all the states, secession being illegal and void. All laws 
of the United States then in force had been enacted 
or were approved by a majority of Southern congress- 
men, except the Morrill tariff law. That was passed 
after the members from South Carolina and the Gulf 
States had withdrawn. It could not have been passed 
if they had retained their seats. Its amendment or 
repeal could be accomplished by the presence of all 
slave-state congressmen in their seats, as both houses 
would then have contained a majority of members 
opposed to a protective tariff. 

It is evident that '*the existence of slavery in the 
then slave states" was then in no peril, unless they 
should persist in secession and force a war. 

The Facts as to Claim Four 

I have already quoted George Mason's argument, 
that it was essential that *'the general government 
should have power to prevent the increase of slavery," 
and also the words by which the Constitution granted 
to Congress power '*to pass all needful regulations for 
the territory of the United States." 

Prior to March 4, 1798, the United States were a 
league described in the preface to the '* Articles of 
Confederation" thus: — 



[14] 

''Articles of Confederation and perpetual union 
between the states of New Hampshire, Massachu- 
setts Bay, Rhode Island and Providence Plantations, 
Connecticut, New York, New Jersey, Pennsylvania,. 
Delaware, Maryland, Virginia, North Carolina, South 
Carolina, and Georgia." 

By virtue of the Constitution framed in 1787 and 
ratified in 1787 and 1788, the United States became 
what that instrument made them. The preamble, 
taking the place of the "Preface" above quoted, read 
thus : — 

" We^ the people of the United States, in order to 
form a more perfect union, establish justice, insure 
domestic tranquillity, provide for the common defense, 
promote the general welfare, and secure the blessings 
of liberty to ourselves and our posterity, do ordain 
and establish this Constitution for the United States 
of America." (The italics are mine.) 

In the Constitutional Convention, while it was 
framing this Constitution, a Virginia delegate moved 
the following: "A national judiciary ought to be estab- 
lished with jurisdiction to hear and determine cases 
in which foreigners and citizens, a citizen of one state 
and a citizen of another state, may be interested, 
cases which respect the collection of the national rev- 
enue, impeachments of national officers, and ques- 
tions which may involve the national peace and har- 
mony.''^ 

The convention made section two, of article three, 
of the Constitution read thus : — 

'*The judicial power shall extend to all cases in law 
and equity arising under this constitution, the laws of 
the United States, and treaties made, or which shall 
be made, under their authority; to all cases affecting 



15 



ambassadors, other public ministers, and consuls; to 
all cases of admiralty and maritime jurisdiction; to 
controversies to which the United States shall be a 
party; to controversies between two or more states; 
between a state and citizens of another state; between 
citizens of different states; between citizens of the same 
state claiming lands under grants of different states; 
and between a state, or citizens thereof, and foreign 
states, citizens, or subjects." 

The second paragraph of article four reads thus: — 
"This Constitution, and the laws of the United 
States which shall be made in pursuance thereof, and 
all treaties made, or which shall be made, under au- 
thority of the United States shall be the supreme 
law of the land, and the judges of every state shall be 
bound thereby, anything in the constitution or laws 
of any state to the contrary notwithstanding." 

The Supreme Court of the United States made de- 
cisions construing the Constitution as to its effect upon 
the respective powers of the general government and 
of the states in the following cases: Martin v. Hunter, 
1 Wheaton, 304, a. d. 1816; McCuUoch v. Maryland, 
4 Wheaton, 316, 403, a.d. 1819; Gibbons v. Ogden, 9 
Wheaton, 187, a. d. 1824. I quote from the court's 
opinions as follows : — 

*'The Constitution of the United States was ordained 
and established, not by the states in their sovereign 
capacities, but (as the preamble of the Constitution 
declares) by the people of the United States." 

"The Constitution of the United States is to be re- 
garded as emanating, not from the states as govern- 
ments, but directly from the people. The convention 
which framed the Constitution was indeed elected 
by the state legislatures, but the instrument when it 



[ 16 ] 

came from the hands of the convention, was a mere 
proposal, without obhgations or pretentions to it. It 
was then submitted to the people. They acted upon 
it in the only manner in which they can act effectively 
and wisely on such a subject, by assembling in con- 
ventions. These conventions necessarily assembled in 
their respective states, but their action did not, on that 
account, cease to be the action of the people themselves, 
or become the action of the state governments." 

"Notwithstanding the people had previously created 
state governments, they had the power to organize a 
distinct and independent government over the whole 
union. 

"It is true that, anterior to the formation of the 
government of the United States, the separate states 
were sovereign, independent, and connected only by 
a league; but when they converted their league into a 
government, when they converted their congress of 
ambassadors into a legislature, the whole character 
in which the states appear underwent a change, the 
extent of which must be determined by a fair consid- 
eration of the instrument by which that change was 
effected." 

Chief Justice Marshall, of Virginia, presided in all 
these cases, and my quotations are from his statement 
of opinion in each case. 

None of said cases has ever been overruled by the 
Supreme Court of the United States. Two of them 
were decided before 1820, and under them President 
Monroe and Secretaries Calhoun, Crawford, and At- 
torney-General Wirt all decided that the act of 1820, 
by which Congress prohibited slavery in 900,000 square 
miles of United States territory, was constitutional. 

In 1790, North Carolina deeded what is now Ten- 



[17] 

nessee to the United States, and in 1802, Georgia 
deeded what is now almost the whole of Alabama and 
Mississippi. Evidently each state then believed that 
Congress could forbid slavery in the United States ter- 
ritory. North Carolina put in her deed, as a condition 
of her conveyance, the words, "Provided that no regu- 
lation made or to be made by Congress shall tend to 
emancipate slaves." Georgia's deed carefully provided 
against any such regulation as to her cession. 

From 1789 to 1854, the action of presidents, of Con- 
gress, and of the judiciary also, conformed to said de- 
cisions, and in the belief that Congress had full power 
to prohibit slavery in United States territory. Washing- 
ton, Jefferson, Madison, Monroe, Jackson, and Polk, 
all Southern born, bred, and resident, and all slave- 
holders, had approved and signed laws of Congress 
prohibiting slavery in territory of the United States. 

In 1856, in the case of Dred Scott vs. Sanford, a 
majority of the then United States Supreme Court held 
that Dred Scott was not a citizen of the United States, 
and therefore could not sue in a United States Court, 
and designated Justice Nelson to announce the dis- 
missal of the case, because the court did not have juris- 
diction to hear and determine its issues. 

Before dismissal was announced, the majority of the 
court caused it to be reargued, and in March, 1857, 
Chief Justice Taney and Justices Wayne, Daniel, 
Grier, and Campbell held that Congress had no power 
to prohibit slavery in any territory of the United States 
acquired after 1789; Justice Catron, of Tennessee, 
held that because of certain words in the French 
treaty slavery could not be prohibited in 1820 in the 
French cession; Justice Nelson gave no opinion on that 
point; and Justices McLean and Curtis held strongly 



[18] 

and ably that Congress had full power to so prohibit. 
Inasmuch as the court did not have jurisdiction to 
hear and decide any question in said case, except to 
hold that it must dismiss it for want of jurisdiction, the 
opinions of Chief Justice Taney and of Justices Wayne, 
Daniel, Grier, and Campbell were not entitled to respect 
as ''judgments of the court; " they could only be regarded 
and heeded as opinions of five able lawyers. The de- 
cisions of the whole court made in 1816, 1819, and 1824 
continued in full force and weight; and they held, as 
to the nature and construction of the Constitution, the 
direct opposite of the conclusions of Taney and his 
four associates. 

Because of their obiter dicta in the Dred Scott case, 
Senator Jefferson Davis and other leading South- 
erners first began to claim that Congress must legis- 
late so as to protect slavery in all territory of the United 
States so long as it remained "territory," in all cases 
where the territorial government should fail, or refuse, 
to provide the necessary remedies to insure adequate 
protection to and for slave property within its juris- 
diction. 

In April, 1860, the Democratic national convention 
met at Charleston, South Carolina. The South asked it to 
place in its platform the substance of Senator Davis's 
said claim, and a majority of the committee reported 
a platform worded as asked by the South. On April 
30, the convention, by a vote of 165 to 138, amended 
the platform by substituting for the endorsement of 
Senator Davis's claim, the following words : — 

"Resolved, that all questions in regard to the rights 
of property in states and territories arising under the 
Constitution of the United States are judicial in their 
character, and the Democratic Party is pledged to 



[19] 

abide by, and faithfully carry out, such determination 
of these questions as has been made, or may be made, 
by the Supreme Court of the United States." 

At that date, the Supreme Court consisted of eight 
Democrats, five of whom were Southern residents, and 
one Republican. Chief Justice Taney, and Justices 
Wayne, Catron, Daniel, Grier, Nelson, Campbell, and 
McLean were still members of the Supreme Court, 
and Justice Clifford, a Democrat, had taken the place 
of Justice Curtis, a Whig, who had resigned. Each 
could hold for life. ,, 

At that date, "the territory of the United States 
consisted of the following parcels, to wit: — 

First About 495,270 square miles ceded by Mexico 
and organized as New Mexico and Utah. Ever since 
September 9, 1850, any slaveholder could hold slaves 
in said territories, and a New Mexican legislature had 
enacted a law for their protection; but owing to their 
location, climate, and soil, slaveholders had been un- 
willing to take slaves there, and, as shown by the 
census of 1860, taken in June, there were no slaves in 
New Mexico, and only twenty-nine in Utah, where, at 
Camp Douglas and vicinity. Southern army officers 

were on duty. 

Second. About 434,580 square miles then organ- 
ized as the territories of Kansas and Nebraska. Ever 
since May 31, 1854, any slaveholder could hold slaves 
in said territories. From April, 1855, to 1858, a terri- 
torial slave code copied from the Missouri statute book 
had been in force in Kansas. On August 2, 1858, under 
a law voted for by a majority of Southern senators and 
representatives in Congress, an election was held in 
Kansas, at which the Free State Party cast 11,300 votes 
and the Pro-Slavery Party only 1788. From that date 



[20] 

the South gave up the attempt to establish a slave 
state in Kansas. The census of June, 1860, showed only 
two slaves in Kansas and fifteen in Nebraska. The 
South never hoped or expected to establish slavery in 
Nebraska. It was too far north. 

Third. About 260,000 square miles then in that 
part of Minnesota Territory not included in the state, 
and in Washington Territory (this is now distributed 
in the Dakotas, Montana, Idaho, and Washington). 
Slavery was prohibited in this territory under statutes 
organizing Minnesota and Oregon territories under 
President Polk. It was all so far north and so distant 
from the nearest slave state that the South did not 
hope or expect the establishment of slavery in any 
of it. There were no slaves within it in 1860, unless 
Southern army oflScers on duty had their servants with 
them. 

Fourth. About 71,000 square miles in what was then 
Indian Territory, land set apart for the Indian tribes 
therein located. None of it was then open to white 
settlement. Slavery existed there and had done so 
from time prior to 1820, and was fully protected by 
local legislation. 

While the Charleston convention was in session, 
the United States did not own a single square mile of 
land in which the South hoped, expected, or could 
possibly establish a slave state, and only 46 slaves 
(29 in Utah, 15 in Nebraska, and 2 in Kansas, all or 
nearly all of them servants of Southern army officers 
on duty at United States posts) were in the territories 
of the United States that were then open to white set- 
tlement. 

No petition had been presented in either house of 
Congress asking for legislation to protect slavery in 



[21] 

any territory. No bill had been introduced In either 
house of Congress for a law to protect slaveholders' 
property in any territory. 

The subject had only been presented by Senator 
Jefferson Davis in the shape of declaratory resolutions 
as to the duty of Congress. 

It would seem that, under these facts, the amend- 
ment made to the platform, by the vote in the con- 
vention on April 30, 1860, was ample for the safety of 
the South, and offered to it all that could rightly be 
asked for. There then existed no demand by, or need 
for, a Congressional slave code on the part of any 
slaveholders in any territory. 

Because the convention so amended said platform, 
the delegates from South Carolina, Florida, Alabama, 
Mississippi, Louisiana, Texas, and Arkansas withdrew 
from the convention. The Democratic Party was so 
divided that a Republican president was elected on 
November 6, 1860, and secession followed. 

Will any intelligent, fair-minded man think that 
Claim Four had or has any value or merit ? 

The Facts Under Claim Five 

On the 26th day of June, 1788, the convention of the 
State of Virginia ratified the Constitution of the United 
States and accompanied that ratification by the follow- 
ing words in one of the resolutions then adopted by said 
convention, to wit : — 

"We, the delegates of the people of Virginia, do in 
the name and on behalf of the people of Virginia, 
declare and make known that the powers granted 
under the Constitution being derived from the people 
of the United States, may be resumed by them when- 



[ 22 ] 

soever the same shall he perverted to their injury or 
oppression.'* 

Virginia's great statesmen, of 1788, well understood 
that Madison was right when he declared that the 
ratification of the Constitution must be so absolute 
that it could not be repealed and made null except for 
good cause; for such cause as the Declaration of Inde- 
pendence, written by Jefferson and adopted on July 4, 
1776, had stated would justify a change of government. 
These words of the Virginia convention truly stated 
the only ground upon which any state could repeal 
its ratification of the Constitution, or secede from the 
Union. No state had any right to so repeal, or secede, 
merely because its people wished to do so. 

The Declaration of Independence, of July 4, 1776, 
written by Thomas Jefferson, of Virginia, stated the 
same doctrine thus : — 

"We hold it to be self-evident, that all men are 
created equal, that they are endowed by their creator 
with certain inalienable rights, that among these are 
life, liberty, and the pursuit of happiness, that to se- 
cure these rights, governments are instituted among 
men, deriving their just powers from the consent of 
the governed, that whenever any form of government 
becomes destructive of these rights, it is the right of the 
people to alter or abolish it and to institute a new 
government." 

The Supreme Court decisions announced in the words 
of Chief Justice John Marshall, the great Virginian, 
hereinbefore quoted by me, held that the Constitution 
had so changed the nature of our union, that it was 
no longer a league; that no state was sovereign, as it 
had been before it ratified the Constitution; that the 
United States was made by the Constitution a national 



[23] 

government, entitled to maintain its powers as granted 
by that Constitution. Therefore, no state had any right 
to secede in 1860-61, because no cause justifying it 
existed. 

The Facts Under Claim Six 

The utmost activity of aboHtion societies from 1830 
to November, 1852 (22 years), resulted in a vote of 
only 156,149 for John P. Hale and against the exten- 
sion of slavery into free territory. On the same day, 
2,983,720 votes were cast by the Whig and Democratic 
parties, in favor of the pledges of that year to maintain 
the " Compromise of 1850" and to oppose *'the re- 
opening of the slavery question, come from what quarter 
it may." Less than half of the 156,149 votes for Hale 
were cast by men who favored action by the national 
government interfering with slavery in any state. As 
the Hale Free State platform did not favor such action, 
and only demanded prohibition of slavery in the ter- 
ritories, that fact shows that "abolitionists" were not 
the majority in the Free-Soil Party. If the abolition 
party could not, after twenty-two years of active work, 
cast more than 78,080 votes out of 3,139,869, in how 
many years could they be expected to so control the 
national government as to interfere with slavery in any 
state ? 

On November 6, 1860, 1,866,352 men voted for Mr. 
Lincoln, knowing that he believed it to be his duty 
(and had declared in public speeches that he would 
do that duty) to aid in enforcing an effective fugitive 
slave law, and that the national government had no 
power to interfere with slavery in any state, knowing 
also that the platform of his party (the Republican Party) 
contained a resolution denying that the national govern- 



[24] 

ment had any such power, and asserting that the rights 
of each state must be preserved; while slavery in the 
territories should be prohibited. No abolitionist be- 
lieved in said doctrines; those who voted for Mr. Lin- 
coln could not truly or rightly be called "abolition- 
ists," because of that vote. Fully three fourths of the 
1,866,352 men who voted for Mr. Lincoln in 1860 had, 
in the Whig and Democratic parties, voted with the 
South in 1852, to support the pledges of that year. 
They would have continued to so vote in said parties, 
with the South, in support of said pledges, if the South 
had not, in 1854, "reopened the slavery question" by 
repealing the Compromise of 1820. The vast majority 
of the people of the North, in 1860, held, as to slavery, 
the same opinion that George Mason of Gunston Hall, 
as one of Virginia's delegates in the Constitutional Con- 
vention of 1787, had supported and earnestly urged. 
I have quoted them in my statement of "the facts 
as to Claim Three." 

The same people continued to hold the same opin- 
ions as to slavery that, in March, 1820, controlled 
both houses of the Congress of that year, and caused 
the passage of the "Compromise of 1820," which 
President James Monroe, of Virginia, approved and 
signed, and which William Wirt, of Virginia, John C. 
Calhoun, of South Carolina, and William H. Crawford, 
of Georgia (all able lawyers), all born, reared, and 
resident in slaveholding states, pronounced consti- 
tutional. 

It would seem, therefore, that the anti-slaver}^ opinions 
of a majority of the people of the free states, in Novem- 
ber, 1860, which were identical with those of George 
Mason (who in 1860 was still revered as having been one 
of Virginia's best and ablest men), and in favor of a pro- 



[25] 

Libition of slavery In tlie territories of the United States, 
which President Monroe and his cabinet (four fifths 
Southern born and resident) had held constitutional, 
under rulings of the Supreme Court as to the powers of 
the general government, furnished no cause to expect 
or apprehend any national legislation interfering with 
'*the domestic institutions of any state," and no cause 
for secession. 

Was not claim Six without value or merit ? 

The Situation in December, 1860, when South Carolina 
seceded 

Abraham Lincoln, pledged to uphold the right of 
the South, under the Constitution, to an effective fugi- 
tive slave law, elected by a party whose platform, 
approved by him, denied that the general government 
had any power to interfere with the domestic institu- 
tions of any state, had received a majority of the elec- 
toral vote for the four years to begin with March 4, 
1861. 

In the Senate of the United States, there was then 
a majority of Democratic and Southern senators so 
large that, if no state should secede, the slavehold- 
ing senators could, during Mr. Lincoln's entire term, 
control the Democratic Senate Caucus and the Senate 
committees. In such case, no officer nominated by 
President Lincoln could be confirmed if objectionable 
to the South, and no bill objectionable to the South 
could become a law, because the Senate majority would 
not vote for it. 

The election of November 6, 1860, made certain 
that, if no state should secede, there would be in the 
House of Representatives, for the term to begin with 
March 4, 1861, a majority of from five to eight against 



[26] 

the Republican Party. No law objectionable to the 
South could possibly be enacted by the Congress of 
1861-1863. 

In December, 1860, there was no law of the United 
States in force to which the South objected. If no 
state should secede, no law objectionable to the South 
could be passed by the Congress of 1859-1861. 

If no state should secede, the south and its domestic 
institutions were absolutely and beyond peradventure 
safe. 

The Situation when General Beauregard attached Fort 
Sumter 

Sumter was a fort built by the general government, 
on ground under water, ceded by South Carolina. In 
it were Major Anderson and eighty-three officers and 
men of the First Regiment of U. S. Artillery, and forty 
workmen employed by Captain Foster of the Engineers. 
Secession forces, aggregating at least 4000 officers and 
men, manned and supported the forts and batteries 
surrounding and bearing upon Sumter. On Monday 
afternoon, April 8, 1861, two messengers, sent by 
President Lincoln, presented themselves to Governor 
Pickens of South Carolina, and one of them read to 
him the following words : — 

'*I am directed by the President of the United States 
to notify you to expect an attempt will be made to sup- 
ply Fort Sumter with provisions only; and that, if such 
attempt be not resisted, no effort to throw in arms, 
or ammunition, will be made without further notice, 
or in case of an attack on the fort." 

General Beauregard, on the same evening, was in- 
formed of said notice. It was telegraphed to Montgom- 
ery, Alabama, and the Confederate executive ordered 



[27] 

General Beauregard to capture Fort Sumter. His bom- 
bardment began at half-past four o'clock on the morn- 
ing of Friday, April 12th. At that hour, the only United 
States vessels within twelve miles of Charleston were 
the ex-revenue cutter Harriet Lane, carrjang one gun, 
and the transport steamer Baltic, with no guns. The 
latter had arrived at three o'clock that morning, dur- 
ing a gale. At seven o'clock that morning the steam 
sloop of war Pawnee arrived and anchored "twelve 
miles east of the light," to await the arrival of the frigate 
Powhatan. As that vessel had been sent to Fort Pickens 
in the Gulf of Mexico, it did not arrive before Charles- 
ton. The transport steamer Baltic "stood in," to execute 
orders, by offering in the first place to carry provisions 
to Sumter. Nearing the bar, it was observed that war 
had commenced, and therefore the peaceful offer of 
provisions was not made. 

See Report of Captain G. V. Fox, dated April 19, 
1861, on page 11 of Volume I, Series 1, "OiBBcial 
Records of the Union and Confederate Armies, War 
of the Rebellion." 

The fort was evacuated by Major Anderson and 
his garrison, on Sunday, April 14th, and General 
Beauregard held it. 

At that time no law of the United States was in 
force to which the South had objected. After the senators 
from seven states had withdrawn, the Morrill Tariff 
Bill had been passed, and was approved by President 
Buchanan. If said senators had remained in their seats, 
it could not have been passed. If the seven seceded 
states had taken advantage of the twenty days given 
by President Lincoln's proclamation of April 15, 1861, 
repealed their acts of secession, disbanded their troops, 
and instructed their senators and representatives to 



[28] 

attend the session of Congress called to meet on the 
Fourth of July, 1861, there would have been a majority 
in each house opposed to the Republican Party, and 
the Morrill tariff law could have been repealed or 
modified to suit the South within a brief period. 

At the moment when the order to General Beaure- 
gard to capture Fort Sumter was made, at Mont- 
gomery, Alabama, a constitutional amendment pro- 
viding that the general government should never be 
given power to alter or interfere with "the domestic 
institutions, including slavery, in any state," was pend- 
ing before the states. If secession should be abandoned, 
it was then certain that California, Oregon, Iowa, Illi- 
nois, Indiana, Ohio, Pennsylvania, New Jersey, New 
York, Connecticut, and Rhode Island, with the 15 slave 
states, would make 26 ratifying states, while 24 would 
make it valid, and Minnesota, Wisconsin, and Michigan 
would probably make 29. This, without war, would 
have made all Southern institutions and slavery perma- 
nently safe. 

As no attempt had been made or proposed by Presi- 
dent Lincoln or by his party, to "pervert any of the 
powers of the Constitution to the injury or oppression 
of any Southern state;" as the acts organizing the 
territories of Dakota, Colorado, and Nevada, which 
had been passed by Congress after the seceding 
senators had withdrawn, did not contain any words 
prohibiting slavery in either territory, each of the 
acts of secession was inoperative and void beyond 
a perad venture ; all of the residents in said states 
were bound to obey said proclamation; no state offi- 
cer had any right or legal power to oppose or prevent 
their obedience to it ; the so-called confederate gov- 
ernment had no legal existence or power; the United 



[ 29 ] 

States had, within every state, as full jurisdiction 
to enforce national law as the state had in order to en- 
force its own laws; the presence or movements of 
United States troops within any state, for the purpose 
of enforcing obedience to the laws of the United States, 
was no invasion of such state. The full enforcement 
of President Lincoln's proclamation of Aprill5, 1861, 
would not have perverted any power granted by the 
Constitution, to the injury or oppression of the people 
of any state. The president issued that proclamation 
under an act of Congress passed during the adminis- 
tration of George Washington, defining how, under 
such a state of facts as existed on April 15, 1861, the 
president should obey section three of article two of 
the Constitution, which reads, "He shall take care that 
the laws be faithfully executed." As I have already 
stated, there was then in force no law of the United 
States which the South had not aided in passing or 
for years fully acquiesced in, except acts organizing 
Dakota, Colorado, and Nevada, and the Morrill tariff 
act, which the willful absence of Southern senators had 
permitted to pass. The South approved said territorial 
acts of 1861. If secession should be abandoned, as 
required by said proclamation, the Morrill tariff act 
could soon have been repealed by the aid of Southern 
senators and congressmen. 

Under the then existing facts, the persistence in 
maintaining secession and a Confederate government 
was unquestionably without excuse or justification. 

The vast majority of the Southern people were ig- 
norant of the facts. If they had known and under- 
wood them, they, by their own action, would have 
prevented secession. The votes and action of Virginia, 
North Carolina, Tennessee, Arkansas, Missouri, Ken- 



[30] 

tucky, Maryland, and Delaware, prior to July, 1861, 
proved that more than two thirds of the South was 
opposed to secession until after April 15, 1861. The 
four that later seceded did so because they believed 
that each state could secede at pleasure, and the nation 
had no right to enforce its laws in any of the seven 
seceded states. Men determined to accomplish seces- 
sion well knew that if a conference, or convention, 
of the slaveholding states should be called, in Novem- 
ber, 1860, to consider and decide what, if an}i:hing, 
ought to be done by said states, because of the success 
of the Republican Party in that presidential election, 
all the facts would be made known and secession de- 
feated; so on October 5, 1860, Governor Gist, of South 
Carolina, sought by letters to induce other Southern 
governors to favor separate state secession "in case 
Mr. Lincoln should receive a majority of the electoral 
vote." By him and others. South Carolina was "gal- 
loped " into secession by the 44th day after the Novem- 
ber election. How the governor was aided in this is 
indicated by a circular from which I now quote. 

November 19, 1860. 
Executive Chamber of the 1860 Association. 
The North is preparing to soothe and conciliate 
the South by disclaimers and overtures. The success 
of this policy would be disastrous to the cause of South- 
ern union and independence, and it is necessary to 
resist and defeat it. 

(Signed) Robert N. Gourdin, 
Chairman of the Executive Committee. 

While the Confederate government was considering 
what action it should take as to Fort Sumter, an active. 



[31] 

uncompromising secessionist said to President Davis 
and his Cabinet, — 

"Unless you sprinkle blood in the face of the people 
of Alabama, they will be back in the old union within 
ten days." See Nicolay and Hay's "Lincoln," Volume 
IV, page 45. 

Every means calculated to excite the Southern people, 
to make them believe that they had been and would be 
outraged and wronged, and to induce them to hastily 
convene conventions to pass acts of secession, without 
giving time for investigation, consideration, and con- 
ference, was resorted to without scruple, and was suc- 
cessful. 

The final verdict of well-informed, impartial history 
will prefix to the name of the attempted revolution of 
the South the adjectives "inexcusable," "unjustifiable." 
The result of the war of 1861-65 seemed to prove that 
God so judged. 

The Facts that controlled the End 

I append to my "Answer" the final, controlling facts 
which saved the Union. 

On March 16, 1861, in a labored speech in the Senate, 
Senator Douglas told to President Lincoln and to the 
people that the Northern Democracy were not then 
ready for a use of force to maintain the national gov- 
ernment. 

On April 4, 1861, President Lincoln in council said 
that that government could only be maintained by the 
united efforts of the people of the loyal states; that if 
the rulers of secession should attack Fort Sumter in 
order to prevent the provisioning of its garrison of 
83 soldiers and 40 workmen, an awakened and united 



[32] 

North would save the country; and therefore he ordered 
Captain Fox to make the attempt to provision the Fort. 

On April 14, 1861, Senator Douglas, at the White 
House, told the president that a united North were, 
heart and soul, with him. On April 15, 1861, that North, 
with enthusiasm, obeyed his call; and the nation was 
safe. See Nicolay and Hay's *' Lincoln," Volume IV, 
pages 27 and 28. 

A careful study of what was done in states and na- 
tion from 1850 to July, 1861, forced me to think that 
the action of the South, beginning with the repeal of 
the Compromise of 1820, in May, 1854, and ending 
with the attempted secession of Virginia, North Caro- 
lina, Tennessee, and Arkansas, in April, May, and 
June, 1861, was amazingly unwise; and that, as the 
counsels of Ahithophel were, by Divine Power, over- 
ruled so that Absalom's rebellion failed, so those of 
able Southern statesmen were, by the same Power, 
so overruled that slavery in our country was made un- 
lawful. 



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